102 Ind. 322 | Ind. | 1885
The appellant, the Exchange Bank, as plaintiff, commenced this action against the appellees, Henry J. Ault, Elizabeth Ault, Thomas B. Ault and Mary A. Ault, as defendants. Appellant’s complaint, as filed, contained two paragraphs ; but, before the trial of the cause, the first paragraph was withdrawn, and it need not be further noticed. In its-
The appellees jointly answered by a general denial of the complaint; and the appellee Thomas B. Ault separately filed a cross complaint in four paragraphs. Appellant’s demurrer was sustained as to the first paragraph, and overruled as to the second, third and fourth paragraphs of such cross complaint, and these latter paragraphs appellant answered by a general denial. The issues joined were tried by a jury, who after-wards returned into court a special verdict. The appellee Thomas B. Ault moved the court for a judgment in his favor on the special verdict; and pending such motion''appellant moved the court in writing “ to render a special finding of its.own in writing of the facts, from the evidence in the cause, upon which to give its conclusions of law and render judgment herein.” Appellant’s motion was overruled by the court, and the motion of appellee Thomas B. Ault was sustained by the court, and judgment was rendered accordingly.
The first error of which appellant complains is the overruling of its demurrer to the second, third and fourth paragraphs of Thomas B. Ault’s separate cross complaint.
In the second paragraph of his cross complaint Thomas B. Ault alleged that he was the owner in fee simple, in his own right, of the land described in appellant’s complaint; that the only claim of the appellant in or to such, land consisted in a judgment and decree of. the court below, rendered on the I8th day of December, 1877, in an action wherein appellant was then plaintiff and Thomas B. Ault was defendant, and
And Thomas B. Ault averred that appellant ought not to have or maintain this action, or any benefit or advantage of, or right or claim under, its aforesaid decree or the sheriff’s sale or conveyance of such land, because, he said, appellant’s aforesaid action against him was begun for the purpose of secretly and without his knowledge procuring an advantage of him and securing, in like manner and without his knowledge, a lien upon his land; that, in pursuance of this purpose, the appellant, on the 18th day of December, 1877, though it well knew that Thomas B. Ault had no knowledge of the commencement or pendency of such action, and well knew that he' was the owner in good faith of such land, and that neither George White nor Henry j. Ault had any interest therein, and that Henry J. Ault had not fraudulently conveyed such land to him to defraud his creditors, but intending thereby to cheat and take from him his land, unjustly and without cause, caused such decree to be entered against him as by default; that, in further pursuance of such purpose, the appellant, well knowing that if Thomas B. Ault had information of such action .or decree within two years from and after the rendition thereof, he would have caused and had the same to be set aside, caused and permitted such decree to remain without any proceeding thereon, until the — day of February,
Of the third paragraph of Thomas B. Ault’s cross complaint, which is “ the ordinary paragraph for quieting title,” in their brief of this cause, appellant’s counsel say : “ We think it is good.” We need not, therefore, notice this third paragraph further, in this connection.
The fourth paragraph of such cross complaint contains all the allegations of the second paragraph, in substantially the same language; and, as we have given a full summary of the second paragraph, these allegations need not be repeated here. The fourth paragraph also stated some additional matters, which are not found in the second paragraph, namely: That appellant concealed the rendition of its decree from the cross complainant, for more than four years thereafter, and kept him in ignorance thereof until the commencement of this action, by withholding process thereon during that time, and
It is at least doubtful, as it seems to us, whether the matters alleged in either the second or fourth paragraphs of Thomas B. Ault’s cross complaint, in this cause, can be regarded. as proper matters of counter-claim or cross complaint in such
In considering such questions, every presumption is indulged in favor of the validity of the judgment or decree sought to be impeached; and . where its validity is called in question in or by any pleading, the facts stated therein must be such as will overcome or exclude all reasonable presumptions in its favor. Where a party seeks, by complaint or ■cross ■ complaint, to impeach the judgment or decree of a court of superior jurisdiction, upon the ground that he had no legal notice of the pendency of the action wherein such judgment or decree was rendered, it is necessary that he should allege in his pleading what, if anything, is shown by the record in relation to the issue and service of process on him in such action. The Owen Circuit Court had jurisdiction of the subject-matter of such action, and we are bound to presume, in the absence of any averment to the contrary, that the court had acquired jurisdiction of the person of the cross complainant, before it rendered the decree against him, which he asked the court, in the pending suit, to set aside
We have given the substance of the second and fourth paragraphs of the cross complaint, almost in the language of the pleader. It will be readily seen therefrom that Thomas B. Ault did not allege, in either of such paragraphs, that a summons had not been issued for him in the former action, requiring him to appear and answer appellant’s complaint therein, nor that such summons had not been duly and legally served on him, in the manner required by law, the proper time before he was defaulted and the decree was rendered therein, which he asks to have set aside and declared void. In the absence of such allegations, we must presume that a summons was duly served on Thomas B. Ault in such former action ; that such summons was legally served on him by the proper officer; that proof of such service was made to the satisfaction of the court before the rendition of the decree therein, and that all these facts are shown by the record of such action. With the presumptions which must be indulged in favor of the validity of the decree, and in the absence of averments to the contrary, it is clear, we think, that neither of the paragraphs of the cross complaint we are now considering stated facts sufficient to constitute a cause of action against the appellant, or to entitle Thomas B. Ault to the relief demanded therein.
We have said that, in each of the second and fourth paragraphs of his cross complaint, Thomas B. Ault has made a collateral attack upon the validity of the decree rendered against him in the appellant’s former action. He has not
For the reasons given, we are of opinion that the court erred in overruling appellant’s demurrers to the second and fourth paragraphs of Thomas B. Ault’s cross complaint.
Other errors are assigned by appellant, and have been discussed by counsel in their briefs of this cause, but as the conclusion we have reached, in relation to the insufficiency of the paragraphs of cross complaint, will require a reversal of the judgment, and, perhaps, a change of the issues in the cause, we need not now consider such other errors. They are not likely to occur again upon a new trial of the cause.
The judgment is reversed with costs, and the cause is remanded with instructions to sustain the demurrers to the second and fourth paragraphs of cross complaint, and for further proceedings.